ProfessorBainbridge.com

Federalism, Establishment, and Free Exercise

The Supreme Court has unanimously upheld Section 3 of the Religious Land Use and Institutionalized Persons Act, which provides in pertinent part:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to [a penal] institution,? unless the burden furthers ?a compelling governmental interest,? and does so by ?the least restrictive means.?

Perhaps the most interesting aspect fo the opinion is Justice Thomas' concurrence, in which he explains why the Act does not offend his federalism-based understanding of the First Amendment's religion clauses. Thomas believes that the First Amendment's Establishment Clause does not erect a wall of separation between church and state, but rather was simply designed to prevent Congress from intefering in state establishments of religion. In his concurrence, Thomas explains why the Congress can nevertheless require states to show a compelling reason for restricting religious exercises by inmates:

Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws ?respecting an establishment of religion?; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.

Based on what I've read of the relevant history, I've come to believe that Thomas' interpretation of the Establishment Clause is correct. The extension of that clause into the so-called wall of separation is a modern invention foisted on us by the Court based mostly on the writings and wishes of Thomas Jefferson, who was in France during the relevant time period. Thomas' explanation of how the proper understanding of the Establishment Clause relates to the limits of Congressional power with respect to religion thus is a very important step forward in the development of a proper understanding fo the Clause as a whole.

Deep Throat

Via Drudge:

The Washington Post today confirmed that W. Mark Felt, a former number-two official at the FBI, was "Deep Throat," the secretive source who provided information that helped unravel the Watergate scandal in the early 1970s and contributed to the resignation of president Richard M. Nixon.

The confirmation came from Bob Woodward and Carl Bernstein, the two Washington Post reporters who broke the Watergate story, and their former top editor, Benjamin C. Bradlee. The three spoke after Felt's family and Vanity Fair magazine identified the 91-year-old Felt, now a retiree in California, as the long-anonymous source who provided crucial guidance for some of the newspaper's groundbreaking Watergate stories.

Money quote:

Bradlee, who was the Post's executive editor during Watergate, said today, "The thing that stuns me is that the goddamn secret has lasted this long."

Supreme Court Justice Louis Brandeis once said:

Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.

I've heard investigative reporters invoke that quote to justify their jobs. So I have a question: Why doesn't that apply to journalistic sources? Why should we trust stories based on unnamed sources, when there have been so many prominent cases lately of journalists just making stuff up? Why shouldn't journalists have to name their sources?

Update: Timothy Noah points out that Felt had parochial bureacratic reasons to serve as Deep Throat:

Hoover had died. Hoover loyalists at the bureau were frantic that President Richard Nixon would get his mitts on the FBI, which Hoover had kept independent of political control through a variety of nasty methods, including blackmail. The Hooverites' bureaucratic anxieties were well-founded: After the Watergate break-in, Hoover's acting successor, a Nixon loyalist named L. Patrick Gray, routinely passed FBI files about Watergate directly to White House counsel John Dean, who was a party to (but eventually would expose) the White House's illegal coverup. In effect, the White House ended up knowing everything the FBI knew. (That's why it seemed so plausible that, if not Felt, Deep Throat might be Deputy White House Counsel Fred Fielding, a theory that, I regret to say, undermined in recent years my previous rock-solid conviction that it was Felt, or at least some other high-ranking G-man? case closed.) Felt pushed back by helping Woodward and Bernstein discover that high-level White House aides were in up to their necks in Watergate, up to and including Nixon.

DC turf wars make the story a lot less romantic, don't they? At the very least, as Glenn Reynolds notes, "I don't mind Nixon going -- I think he was a pretty lousy President for all sorts of reasons aside from Watergate -- but it's obvious that the simplistic Woodward & Bernstein hero-tale is a bit, um, incomplete." But it also speaks to my point about anonymous sources: Might we not have evaluated Woodward and Bernstein's work with a more informed eye if we knew they were being fed stories by somebody with a bureaucratic axe to grind?

And speaking of journalists just making stuff up, Noah catches Woodward and Bernstein in what look like outright lies about Deep Throat, not just omissions:

I have a few bones to pick with Woodward and Bernstein. One is that, in All the President's Men, Deep Throat is described as a heavy smoker. But Felt quit smoking in 1943. I suppose Woodstein would call this necessary misdirection. I call it conscious fabrication, however trivial. Also, a November 1973 Woodward and Bernstein Post story sourced anonymously to "White House sources" is described in All the President's Men as being sourced to Deep Throat. Yet Felt was not a "White House source." It's conceivable that Deep Throat was an additional, unacknowledged source on the story, but it's also possible that Woodward and Bernstein were misleading readers about where they got their information. Which was it, gentlemen? Finally, why did Woodward, in a 1979 Playboy interview with J. Anthony Lukas, flatly deny that Deep Throat was anyone inside the "intelligence community"? The FBI, where Felt worked, is most definitely part of the intelligence community.

What Noah fails to consider is the possibility that those discrepancies might reveal a deeper truth: Maybe Deep Throat was really a composite character all along. We don't know because we tolerate a culture of anonymous sourcing and journalistic dissembling.

The SEC: Hoist on its own petard

As the SEC continues pressing forward with enforcement of the internal controls provisions of SOX, something very amusing has come to light in a GAO report:

In GAO's opinion, SEC's fiscal year 2004 financial statements were fairly presented in all material respects. However, because of material internal control weaknesses in the areas of recording and reporting disgorgements and penalties, preparing financial statements and related disclosures, and information security, in GAO's opinion, SEC did not maintain effective internal control over financial reporting as of September 30, 2004.

Ouch! Mayhap the SEC needs to get its own house in order first? Or, at least, consult Matthew 7:3-5? It's a serious institutional embarassment for the SEC.

It's not just about the yuck factor

Edward Feser offers some very sensible thoughts on the role of morality in law making:

Not all moral principles ought to be enforced by the power of government, but almost everything government does is based on some moral principle or other. It is fatuous, then, to hold that "we shouldn't legislate morality," if this means that controversial moral principles shouldn't guide public policy. And almost every moral principle is controversial to a significant extent: even when people agree that murder is wrong, they often disagree about what counts as murder, as the disputes over abortion, euthanasia, and even the killing of animals attest. The question, then, is not whether controversial moral principles ought to inform our laws, but rather which controversial moral principles -- liberal, conservative, libertarian, or whatever -- ought to inform them.

On the Meaning of Memorial Day

Kieran Healy on Memorial Day:

For those of us in the U.S., today is Memorial Day. America has a fine tradition of military service and sacrifice. The best way to respect and honor it is to reflect on what it means to serve and perhaps die for your country, and to think about the value of the cause, the power of the reasons, and the strength of the evidence you would need before asking someone? someone like your brother, or friend, or neighbor?to take on that burden. That so many are willing to serve is a testament to the character of ordinary people in the United States. That these people have, in recent years, shouldered the burden of service for the sake of a badly planned war begun in the name of an ill-defined cause, on the thinnest of pretexts, and with the most flimsy sort of evidence, is an indictment of the country?s political class.

Orin Kerr correctly calls it a post "that seems designed to get lots of people hopping mad." And predicts: "It no doubt will succeed." Orin goes on to opine:

It seems to me that this exactly what Memorial Day doesn't mean. Memorial Day is about honoring the sacrifice of those who gave up their lives fighting in the name of the United States. It is about the living honoring the dead, recognizing their passing and reaffirming our memory and appreciation for what they did. It is about the troops, the grunts, the front-line soldiers who left home and did not return. Memorial Day is not a time to separate out which of the dead served and died for good reasons or bad; to second-guess which decisions to declare war, launch a campaign or charge a hill were justified or not; or to test your ability to invent a populist voice to make cheap shots against an Administration you despise. I'm sure there are good times for that, but Memorial Day isn't one of them.

I'm very much with Orin on this one. Not perhaps for the same reasons. Certainly not because I'm an enthusiast for the Iraq war, which I've never been. But because of something Russell Kirk taught:

... the body social is a kind of spiritual corporation, comparable to the church; it may even be called a community of souls. Human society is no machine, to be treated mechanically. The continuity, the life-blood, of a society must not be interrupted.

And because of something John Paul II taught:

In praying for the dead, the Church above all contemplates the mystery of the Resurrection of Christ, who obtains salvation and eternal life for us through his Cross. ...

... the Mystical Body of Christ is waiting to be reunited at the end of history, when all its members will be in perfect beatitude and God will be all in all (cf. Origen, Homilies on Leviticus, n. 7). ...

... Joined to the merits of the saints, our fraternal prayer comes to the aid of those who await the beatific vision. Intercession for the dead, just as the life of those living according to the divine commandments, obtains the merits that serve the full attainment of salvation. It is an expression of the fraternal charity of the one family of God, by which "we are faithful to the Church's deepest vocation" (Lumen gentium, n. 51): "to save souls who will love God eternally" (Th�r�se of Lisieux, Prayers, 6; cf. Manuscript A 77r�).

And so, indeed, Memorial Day is "about the living honoring the dead, recognizing their passing and reaffirming our memory and appreciation for what they did." In doing so, we recognize and affirm that we are part of a community of souls that exists across both space and time. On Memorial Day, we honor their memory and intercede on their behalf. There are, it seems to me, a surfeit of other days on which to "indict[] ... the country?s political class."

Finally ... sort of

George RR Martin's on-going effort to catch up the Robert Jordan as the King of Bloated Fantasy takes a giant leap forward with the quasi- completion of A Feast for Crows. From Martin's announcement:

... my publishers and I, after much discussion and weighing of alternatives, have decided to split the narrative into two books .... The first plan was simply to lop the text in half. In that scenario, I would finish the last few chapters in as short a length (and time) as possible. That would have produced a story of maybe 1650 to 1700 pages in manuscript, which we would simply have broken into two chunks of roughly equal length and published as A FEAST FOR CROWS, Part One and A FEAST FOR CROWS, Part Two.

We decided not to do that. It was my feeling -- and I pushed hard for this, so if you don't like the solution, blame me, not my publishers -- that we were better off telling all the story for half the characters, rather than half the story for all the characters. Cutting the novel in half would have produced two half-novels; our approach will produce two novels taking place simultaneously, but set hundreds or even thousands of miles apart, and involving different casts of characters (with some overlap).

The division has been done, and I think it works quite well. The upshot is, A FEAST FOR CROWS is now moving into production. It is still a long book, but not too long; about the same size as A GAME OF THRONES. The focus in FEAST will be on Westeros, King's Landing, the riverlands, Dorne, and the Iron Islands. More than that I won't say.

Martin's saga is already more than 4 times longer than The Lord of the Rings. His story isn't four times more complex, let alone four times better, than LotR. My advice to GRRM: Wrap it up before you jump the shark.

Update: Steven Taylor headlines his comment on the announcement: And there was much rejoicing. Hmph. My views are more along the lines of a Crooked Timber commenter:

I started A Song of Ice and Fire just after volume two was published, and I figured on a nice trilogy without too long a wait for the third volume.

Then a) the series was extened to a sexology b) Martin decided to change his production schedule to a book every five years.

Yep. It's most annoying.

Hoagland on Iraq

Jim Hoagland offers a balanced and thoughtful essay on Iraq in the WSJ($). He begins with a candid acknowledgement of the progress being made in both the war on terror and the war in Iraq:

Middle Eastern and European governments increasingly understand that they too are targets of al Qaeda or its associates and therefore provide Americans with counterterrorism help denied in the past.

There is also a spreading awareness of -- or perhaps a spreading willingness to talk about -- the disastrous global consequences that an abrupt American retreat from Iraq would bring, even as ideas of retreat become more seductive here. Islamic nations are renewing conversations among themselves about a possible peacekeeping force to help in Iraq, Arab diplomats report.

Despite the bloodshed and horror there, Iraq also records progress. Elected Kurdish and Shiite leaders practice democratic and responsible politics, and reach out to the Sunni community to join the process. U.S. forces are increasingly confident in the ability of newly formed Iraqi battalions to handle security duties, and will soon demonstrate that confidence by increasing Iraqi command responsibilities in joint Iraqi-U.S. units.

But he also cogently argues that both the troops in the field and the public at home:

... deserve a clearer, more realistic explanation from U.S. President Bush of their strategic mission and directives that show them precisely how to accomplish it.

... The White House seems to underestimate the fraying of national support that is occurring for the U.S. military presence in Iraq and, to a lesser extent, in Afghanistan. Freedom may be on the march, but Americans need to be told more specifically and causatively how U.S. and allied combat deaths abroad advance that march now, not years from now.

... The effort should start with Bush's public declarations during this year's commemoration of American valor on the battlefield. His visionary rhetoric about freedom and American values helped rally the nation during the shocks of the past four years. The reassuring approach, he can argue, has kept public anxiety to a minimum.

But the time for reassurance alone is over. It is time for details, for a sense of a blueprint, for a progress report that goes beyond listing what has happened to the top nine or 15 or 25 al Qaeda leaders. That simple, clear report should trace as well where the United States stands in fighting the Salafi extremist networks that intend to rule or to destroy Muslim lands.

Bush and the Gospel of Life

William Saletan accuses President Bush of hypocrisy in opposing stem cell research even though it supposedly would save lives but supporting the death penalty on grounds that it saves lives (presumably through either general or specific deterrence). I think Saletan has a point, although perhaps less of one than he believes. As Avery Cardinal Dulles pointed out in a thoughtful analysis of Christian (well, specifically Catholic) teaching on the death penalty, there is little reason to think the death penalty is necessary to advance the goals of either general or specific deterrence:

Defense against the criminal. Capital punishment is obviously an effective way of preventing the wrongdoer from committing future crimes and protecting society from him. Whether execution is necessary is another question. One could no doubt imagine an extreme case in which the very fact that a criminal is alive constituted a threat that he might be released or escape and do further harm. But, as John Paul II remarks in Evangelium Vitae, modern improvements in the penal system have made it extremely rare for execution to be the only effective means of defending society against the criminal.

Deterrence. Executions, especially where they are painful, humiliating, and public, may create a sense of horror that would prevent others from being tempted to commit similar crimes. But the Fathers of the Church censured spectacles of violence such as those conducted at the Roman Colosseum. Vatican II’s Pastoral Constitution on the Church in the Modern World explicitly disapproved of mutilation and torture as offensive to human dignity. In our day death is usually administered in private by relatively painless means, such as injections of drugs, and to that extent it may be less effective as a deterrent. Sociological evidence on the deterrent effect of the death penalty as currently practiced is ambiguous, conflicting, and far from probative.

Yet, I think Saletan stretches the point in accusing Bush of hypocrisy rather than mere error. The charge of hypocrisy suggests, at least to me, that Bush is betraying his own principles on one or the other of these issues. (Ramesh Ponnuru made much the same point on the Corner. Also, Eugene Volokh correctly points out that Saletan's charge of hypocrisy is even less persuasive when one examines the full context of the quotes used by Saletan. It's clear that Bush has thought about how one reconciles the two positions morally. You can disagree with his moral analysis, as I do, but not fairly charge him with hypocrisy.)

When it comes to Gospel of Life issues, of course, President Bush's position is quite close to the orthodox Catholic position. (Indeed, one this score at least, Bush strikes me as far closer to Catholic orthodoxy than most Catholic politicians.) And, as Cardinal Dulles made clear, one can square the death penalty and the Gospel of Life.

Dulles explains:

Pius XII, in a further clarification of the standard argument, holds that when the State, acting by its ministerial power, uses the death penalty, it does not exercise dominion over human life but only recognizes that the criminal, by a kind of moral suicide, has deprived himself of the right to life. In the Pope’s words,

Even when there is question of the execution of a condemned man, the State does not dispose of the individual’s right to life. In this case it is reserved to the public power to deprive the condemned person of the enjoyment of life in expiation of his crime when, by his crime, he has already dispossessed himself of his right to life.

In light of all this it seems safe to conclude that the death penalty is not in itself a violation of the right to life.

In other words, Bush's problem is not hypocrisy but rather the error of staking his position on the wrong grounds. If Bush had staked his position on the death penalty on notions of retributive justice, there would be no moral inconsistency in his positions on stem cells and the death penalty.

Having said all that, I do think President Bush is a little too ... shall we say, enthusiastic? ... about the death penalty. If I may rely on Dulles once more, I have come to share his belief that the death penalty ought to be legal but rare dormant:

The doctrine remains what it has been: that the State, in principle, has the right to impose the death penalty on persons convicted of very serious crimes. But the classical tradition held that the State should not exercise this right when the evil effects outweigh the good effects. Thus the principle still leaves open the question whether and when the death penalty ought to be applied. The Pope and the bishops, using their prudential judgment, have concluded that in contemporary society, at least in countries like our own, the death penalty ought not to be invoked, because, on balance, it does more harm than good.

Precisely.

Hedge Fund Activism

A while back, when the W$J recently reported that Carl Icahn and two of his allies won election to Blockbuster's board of directors, with substantial support from hedge funds, it opined:

Mr. Icahn's victory starkly demonstrates the growing willingness of hedge funds to wield clout in corporate boardrooms. A number of the large, private investment pools rank among Blockbuster's biggest shareholders and were enthusiastic backers of Mr. Icahn. (Pay Link)

Are hedge funds the next big thing in corporate governance, solving the principal-agent problems inherent in that governance structure? Or will they fizzle out the way hostile takeovers and, to a lesser extent, institutional investor activism have?

My guess is the latter.

First, thus far hedge funds have been mainly followers. The high profile cases in which hedge funds have - or likely will - played a major role have mostly been cases in which there was an individual activist around whom the hedge funds rallied: Roy Disney and Stanley Gold at Disney, Icahn at Blockbuster, and, possibly coming down the pike, Kerkorian at GM. The leading recent case in which hedge funds tried to affect boardroom deliberations without a rallying figure was MCI, in which the hedge funds (thus far) failed to sway the MCI board from its preference for Verizon over Qwest. Given the constr aints on shareholder activism in US corporate and securities law, it seems likely that hedge funds will be most successful in those limited number of cases in which there is a central coordinating figure driven by a private agenda.

Second, at least two of the above-referenced cases - Icahn at Blockbuster and Kerkorian at GM - look a lot more like 1980s-style greenmail raids rather than efforts to improve corporate governance long-term. Granted, there is a theory (most prominently advanced by law professors Jon Macey and Fred McChesney) that greenmail sometimes benefits not just the greenmailer but rather target company shareholders generally. The empirical data, however, as summarized by Gilson and Black (at 788) suggests that greenmail only does so where the greenmailer's raid is followed by a successful takeover of the target company by another acquirer. To the extent hedge funds are simply piggybacking on the efforts of greenmailers like Icahn and Kerkorian, they therefore are more likely to obtain private benefits through wealth transfers than to provide systemic benefits.

Third, much of the success of hedge funds has been attributed to the fact that they are lightly regulated. The WSJ report, for example, quotes a hedge fund manager who "said there is no doubt hedge funds are gaining power, in part because the lightly regulated funds are able to challenge companies without the restrictions that can encumber mutual funds and other institutional investors." The prospects for hedge fund activism are thus circumscribed in two ways. First, hedge funds in fact are subject to many of the constraints on shareholder activism that have helped prevent institutional investor activism from becoming much more than a thorn in management's side. Second, the SEC and Congress have already been flirting with efforts to regulate hedge funds. If hedge funds succeed at becoming something more than annoyance, one can expect the business lobby (such as the Business Roundtable, NAM, and the Chamber of Commerce) to provide critical support for such efforts.

Should we mourn the likely failure of hedge funds as activists? No. Granted, the separation of ownership and control in publicly held corporations, pursuant to which directors and managers exercise control while shareholders nominally own the corporation, results in a classic principal-agent problem. In other words, directors and managers may use their control to extract private benefits to the detriment of shareholders.

A narrow focus on these agency costs, however, can distort one?s understanding. We could substantially reduce, if not eliminate, agency costs by eliminating discretion; that we do not do so suggests that discretion has substantial virtues. A complete theory of the firm thus requires one to balance the virtues of discretion against the need to require that discretion be used responsibly.

The root economic argument against hedge fund (and other forms of shareholder) activism thus becomes apparent. It disrupts the very mechanism that makes the public corporation practicable; namely, the centralization of essentially nonreviewable decisionmaking authority in the board of directors.

Put another way, the chief economic virtue of the Berle-Means corporation is not that it permits the aggregation of large capital pools, but rather that it provides a hierarchical decisionmaking structure well-suited to the problem of operating a large business enterprise with numerous employees, managers, shareholders, creditors, and other inputs. In such a firm, as economist Kenneth Arrow explained, someone must be in charge: ?Under conditions of widely dispersed information and the need for speed in decisions, authoritative control at the tactical level is essential for success.?

While some argue that shareholder activism ?differs, at least in form, from completely shifting authority from managers to? institutions, it is in fact a difference in form only. Shareholder activism necessarily contemplates that institutions will review management decisions, step in when management performance falters, and exercise voting control to effect a change in policy or personnel.

In a very real sense, giving institutions this power of review differs little from giving them the power to make management decisions in the first place. To quote Arrow again: ?If every decision of A is to be reviewed by B, then all we have really is a shift in the locus of authority from A to B and hence no solution to the original problem? of allocating control under conditions of divergent interests and differing levels of information.

In sum, the basic precept of corporate law and governance is separation of ownership and control. Hedge fund activism is unlikely to put them back together again. And, as Martha Stewart might say, that's a good thing.

Why I Support the Filibuster Deal

My latest TCS column

The so-called Gang of 14's deal on judicial nominations aroused the ire of activists on both the left and right, but it is my friends on the right who seem to have been most disaffected. In contrast, I'm a proud charter member of the Coalition of the Chillin', which is dedicated to the proposition that the world did not end on May 23rd. (We even have t-shirts!)

Some critics of the deal wanted the Senate GOP majority to pull the trigger on what they call the constitutional option (and the rest of us call the nuclear option), so as to establish a purported constitutional principle that the advice and consent clause does not authorize the Senate to require a supermajority vote to approve judges. I respect the expertise of the many scholars who hold this position, but am not persuaded by it.

The constitutionality of the filibuster as applied to judicial nominations (or anything else for that matter) is quite complex. It's said that the Constitution's advice and consent provision is counter-majoritarian. But so what? So are things like the committee process, holds, and unanimous consent requirements. I believe that the Constitution permits all of these practices, even though they're counter-majoritarian. The Constitution, in Article I, section 5, seemingly contemplates that the Senate may adopt rules other than those set forth in the Constitution: "Each House may determine the rules of its proceedings." Isn't the filibuster rule just such a procedural rule?

It is said that the Constitution sets out specific instances in which a supermajority vote is required. The advice and consent provision is not among them. But so what? The Constitution doesn't say the list of supermajority vote requirements is exclusive. Just as shareholders of a corporation can adopt bylaws requiring a supermajority vote for matters as to which the corporation statute only requires a majority vote, why doesn't Article I, section 5 allow the Senate to do likewise?

Besides which, the GOP used blue slips and Judiciary Committee rules to bottle up dozens of Clinton judicial nominees in committee. As, of course, the Democrats sometimes did to Bush 41 and Reagan nominees. So even if the Constitution requires an up-or-down vote on every nominee, there is bipartisan history of ignoring that rule. Too many of my conservative friends are ignoring this little fact.

Other critics of the deal make the partisan claim that the Democrats will simply do away with the filibuster whenever it suits them, to which I offer three observations: First, a chief problem with American politics these days is the assumption on both sides of the aisle that the other side is unprincipled. There are people of good will and principle on both sides and I, for one, am willing to take the Democrats who signed the deal at their word. Of course, as Ronald Reagan said, "trust but verify." Second, as a practical matter, changing the filibuster is tough. It's only happened a relatively few number of times. The Democrats never tried it back when the GOP filibustered Clinton legislative proposals. Indeed, the Democrats never even tried to change the Judiciary Committee rules that the GOP used to bottle up Clinton nominees in committee. So why should the GOP pave the way for them? Finally, and most importantly, even if the Democrats are as unprincipled as some on the right argue, does that mean we on the right should also give up our principles? Two wrongs, after all, do not make a right. Hence, we come to my main point, which is that the deal preserved an important constitutional principle.

In my view, critics of the deal are putting short-term partisan gain ahead of both principle and long-term advantage.

Russell Kirk taught that there are ten core conservative principles, but at the heart of all of them is the basic notion that change should be slow and prudent:

        Conservatives are champions of custom, convention, and continuity 
        because they prefer the devil they know to the devil they don't know. 
        ... Burke's reminder of the necessity for prudent change is in the mind of the 
        conservative. But necessary change, conservatives argue, ought to be gradual 
        and discriminatory, never unfixing old interests at once.

        ... In politics we do well to abide by precedent and precept and even 
        prejudice, for the great mysterious incorporation of the human race has 
        acquired a prescriptive wisdom far greater than any man's petty private 
        rationality.

        ... Any public measure ought to be judged by its probable long-run 
        consequences, not merely by temporary advantage or popularity. 
        Liberals and radicals, the conservative says, are imprudent: for they dash at 
        their objectives without giving much heed to the risk of new abuses worse 
        than the evils they hope to sweep away. As John Randolph of Roanoke put 
        it, Providence moves slowly, but the devil always hurries.

The filibuster is a profoundly conservative tool, which advances each of Kirk's goals. It slows change by allowing a resolute minority to delay -- to stand athwart history shouting stop. It ensures that change is driven not "merely by temporary advantage or popularity" but by a substantial majority. Is it any wonder that it has usually been liberals who want to change or abolish the filibuster rule? The left knows that the filibuster is a deeply conservative weapon whose main function is to advance the function the founders intended for the Senate:

        In selecting an appropriate visual symbol of the Senate in its founding 
        period, one might consider an anchor, a fence, or a saucer. Writing to 
        Thomas Jefferson, who had been out of the country during the Constitutional 
        Convention, James Madison explained that the Constitution's framers 
        considered the Senate to be the great "anchor" of the government. 
        To the framers themselves, Madison explained that the Senate would be a 
        "necessary fence" against the "fickleness and passion" that tended to 
        influence the attitudes of the general public and members of the House of 
        Representatives. George Washington is said to have told Jefferson that 
        the framers had created the Senate to "cool" House legislation just as a 
        saucer was used to cool hot tea. (Link)

The filibuster furthers that objective by ensuring that change is, as Kirk put it, "gradual and discriminatory, never unfixing old interests at once."

Proponents of the nuclear option claim to believe that abolishing the filibuster could be limited to judicial nominations. It's a coin flip as to whether this is naive or disingenuous. It's a slippery slope to abolishing the filibuster as to Presidential nominations or even legislation. Would the GOP be tempted to abolish the filibuster if necessary to put John Bolton at the UN? Or to ram through Social Security reform? Even if the GOP resisted that temptation, what happens the next time the Democrats control the Senate? A GOP-established legislative and institutional precedent for abolishing the filibuster as to judicial nominations would make it all that much easier for the Democrats to do the same as to nominations or legislation. (Imagine President Hillary with a 50-50 Senate split and, say, Mark Warner as VP. What will prevent HillaryCare II if we don't have the filibuster then? Our slim majority in the House?)

Even if this precedent could be limited to judicial nominations, what happens if President Hillary (with a 50-50 Senate split) nominates somebody like Larry Tribe or, worse yet, Margaret Marshall to the Supreme Court? Wouldn't it be handy to still have the filibuster around then? Sure, the Democrats could pull the nuclear option, but, again, why should the GOP pave the way?

I've been as critical of Democrat obstructionism as anyone. But even in the unlikely event that pulling the trigger on the nuclear option would have guaranteed that every one of President Bush's current and future nominees ultimately would have passed a confirmation vote, the cost in terms of both principle and long-term advantage still would have been too high.

Wine Bans in State Legislatures

The big question after the Supreme Court's decision striking down discriminatory state laws banning direct-to-consumer sales by out-of- state producers was whether the ever-frowing number of local and regional wineries around the country would generate localized political pressure in state legislatures that can off-set the considerable political pull of the wholesalers and retailers who oppose direct-to- consumer sales. (See my TCS column on the decision.) Here's one hopeful sign: A Maryland state legislator who represents a district containing two wineries is starting a push to repeal Maryland's ban on direct-to-consumer sales (link).

An Agency Law Question: Sub-agents versus Co-agents

A reader sent along an interesting email posing an agency law issue:

I am a professor teaching Agency and Partnership at [redacted] School of Law. We use the Agency, Partnerships, and Limited Liability Entities text that you co-authored. I also use the Foundation Press book you authored entitled, Agency, Partnerships and LLC's.

I taught the class the distinction that you made in the latter book (page 40) regarding co-agents and sub-agents and a student came up to me after class and pointed out from page 11 of the casebook, (MJ and Partners Restaurant Limited Partnership v. Zadikoff) that a sub-agent "stands in a fiduciary relation to the principal, and is subject to all the liabilities of an agent to the principal". Would you be so kind to help me to explain to this student how an agent is primarily liable for the acts of sub-agent in light of the MJ case?

Obviously I'm delighted to be of service under the circumstances! As for the question posed, there really is no conflict between the statement in the MJ case and the discussion in my text, which reads as follows:

Where one agent has authority to retain a second, they are usually treated as co-agents. In such cases, both agents are deemed to be agents of the principal and both have power to affect the principal?s legal relations. In some cases, however, the principal and agent may agree that the agent may delegate some responsibilities to other persons for whose conduct the agent agrees to be primarily responsible. Such a person is a subagent of the principal.[1] The distinction is important because an agent generally has no liability to either principal or third parties for the acts of a co-agent,[2] but an agent does have such liability with respect to the acts of a subagent. 

In other words, both a sub- agent and a co-agent owe fiduciary duties to the principal. The distinction between a sub-agent and a co-agent is thus irrelevant with respect to the relationship between that individual and the principal. The distinction is also irrelevant with respect to the agent's ability to affect the relationships of the principal with third parties. Both co-agents and sub-agents have the power to make contracts legally binding on the principal. See, e.g., comment d to Agency Restatement Second sec. 5. Instead, the distinction between co-agents and sub- agents is relevant to the relationship between the appointing and the appointed agent. An agent who appoints a sub-agent is liable to the principal for wrongful acts of the sub-agent. See, e.g., comment f to Agency Restatement Second sec. 5. In contrast, the appointing agent generally is not liable to the principal for for a co-agent's wrongful conduct. See also Agency Restatement Second sec. 405 and 406.

[1] Restatement (Second) ? 5(1).

[2] The appointing agent may be liable for a co- agent?s misconduct if the appointing agent was negligent in selecting the co-agent. Restatement (Second) ? 405(2).

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Doggie Day Care

A front page center column story from today's WSJ really struck close to home:

Mari Lawson worried that Cousteau, her Great Dane, lacked social skills. So she tried to get him admitted to Urban Tails, a day-care center that encourages dogs to mingle and play.

Ms. Lawson could hardly believe the admissions process. She had to fill out a four-page "dog personality profile," in which she disclosed that Cousteau barks at the mailman and dislikes "bums with shopping carts." She also wrote he has "sharing issues." He becomes "aggressive with toys and other dogs."

At the start of his interview, Cousteau failed to impress, leaving a puddle on the floor of Urban Tails' lobby. And he still awaited the heart of the evaluation: a "peer session" with other dogs that would test his "temperament" with sniffs, licks and the occasional roll on the ground. "I'm freaking out," said Ms. Lawson, a small-business consultant. "I feel like we're trying to get Cousteau into college here."

I can totally relate, although I think that expression dates me rather severely. Our Toby breezed through his application process and happily goes off to a local doggie day care two days a week. But we didn't even bother trying with Sam. Given that whole alpha bitch thing she's got going, there's no way she would have made it through the interview.

Adler on the Deal

Over at NRO's Bench Memos blog, Jonathan Adler and Mark Levin are debating the filibuster deal. Levin's been banging away at me in several posts (and in the process violated basic blogosphere etiquette by failing to link to those of my posts he's criticizing). In contrast, Adler gets it exactly right:

I don?t think many conservatives maintain that the filibuster is useful as a tool to block judges. Rather, I think many conservatives believe that the filibuster is a useful legislative tool insofar as it allows conservatives to block the growth of government. The connection is that many conservatives rightly feared the proposed rule change for judicial nominations would lead to the complete elimination of the filibuster for all purposes the next time conservatives sought to block a liberal initiative. That is, getting rid of it where it is improper would lead to getting rid of it where it is proper and useful.

Update: I think I hit a sore spot. Levin sent me this email and told me to post it:

Somebody named Professor Bainbridge is a little thin-skinned.  I don't post my comments.  NRO does.  Take your etiquette complaint up with NRO.  Having said that, IMHO your filibuster argument was George Will redo.  Maybe you should have linked to his original story, just for comparison purposes.  You know, blogger etiquette and all.  I didn't think it was particularly harsh criticism, but you didn't handle it very well.  Good luck to your students.

Umm. And I'm the one who's thin skinned? What a jerk, IMHO. But compare, contrast, and decide for yourself.

Update2: Given all the flak I'm taking from folks like Levin, my thanks to Hugh Hewitt for this observation:

... the Professor of the Vines and John Podhoretz are fine conservatives and they both like the deal.

I'm not sure why Hugh went on to claim that this deal "sell[s] out the Constitution," however. To be sure, a lot of conservatives I respect (e.g., my friend and former colleague Gerry Bradley) likewise seem to think that the Constitution precludes filibustering of judicial nominees.

I'm just a little old corporate lawyer, not a con law expert, but it seems to me that the constitutionality of the filibuster as applied to judicial nominations (or anything else for that matter) is quite complex. It's said that the Constitution's advise and consent provision is counter-majoritarian. But so what? So are things like the committee process, holds, and unanimous consent requirements. I believe that the Constitution permits all of these practices, even though they're counter-majoritarian. The Constitution, in Article I, section 5, seemingly contemplates that the Senate may adopt rules other than those set forth in the Constitution: "Each House may determine the rules of its proceedings." Isn't the filibuster rule just such a procedural rule?

It is said that the Constitution sets out specific instances in which a supermajority vote is required. The advice and consent provision is not among them. But so what? The Constitution doesn't say the list of supermajority vote requirements is exclusive. Just as shareholders of a corporation can adopt bylaws requiring a supermajority vote for matters as to which the corporation statute only requires a majority vote, why doesn't Article I, section 5 allow the Senate to do likewise?

Besides which, the GOP used blue slips and Judiciary Committee rules to bottle up dozens of Clinton judicial nominees in committee. As, of course, the Democrats sometimes did to Bush 41 and Reagan nominees. So even if the Constitution requires an up-or-down vote on every nominee, there is bipartisan history of ignoring that rule. Too many of my conservative friends are ignoring this little fact.

The Singularity

I just started Charles Stross' novel Singularity Sky; it's shaping up as another winner. A great riff on politics, culture, and human nature wrapped up in a very entertaining novel. Coincidentally, Stross has just offered up a snarky hypertextual guide to the Singularity over on his blog. Very handy it is not, but amusing mildly it is, as Yoda might say.